2011 REVISIONS to the California Family Code: Serving POST-JUDGMENT OSC's and MOTIONS

Posted By Thurman Arnold, CFLS

Effective January 1, 2011, you may serve post-judgment motions to modify
custody, visitation, or child support orders by regular mail and file
with the Court a
declaration of mailing.

This is revised
Family Code section 215. Until now applications to change these orders needed to be personally
served upon the other party. This created hardship and added expense for
many people, since it can be difficult to locate the whereabouts of the
other parent in some families months or years after a Judgment for Paternity,
Nullity, or Dissolution of Marriage or Domestic Partnership. This often
necessitated service by publication if there was no good address - publication
in a newspaper can approximate $400, and service is not deemed effective
for at least a month after the fourth week of being published. Moreover,
an order permitting Service by Publication also needed to be obtained,
which itself costs money and time. To this extent the revision is a good thing.

The bad news is that this provision may encourage fraud, which might result
in hearings where only one party really knew to be present. Litigants
may claim that the papers were mailed when they weren't. Perhaps the
person who signs the declaration (grandma) doesn't walk the letter
to the mailbox. Perhaps a girlfriend claims she sent the notice but doesn't
- how could it be proved? What happens when someone doesn't get the
mail on the receiving end, whether because of the letter is lost, by inadvertence,
or for having moved? So long as the moving papers contain the required
Proof of Service they are presumptively valid and orders will issue even
when the responding party fails to show up for the hearing.

Hence, the burden of attacking a modification taken by default shifts
to the answering party. For instance if an order is issued by reason of
their mistake, inadvertence, or surprise it remains valid until and unless
a successful challenge is filed and upheld. These motions are expensive,
and judges tend to disfavor them. Here your remedies are (a) filing a
motion to quash service, which you won't be able to prove (how does
one establish the pleadings weren't mailed?) and/or (b) filing a set
aside motion pursuant to
Code of Civil Procedure section 473, which generally must occur no later than six months from the date an order
is entered. Likewise, while there is no time limit for setting aside orders
obtained by extrinsic fraud (i.e., perjury), this is hard to prove. Third,
the other party must bear all the initial expense, which can be considerable
since these motions are technical and require the help of an attorney.
Fourth, anyone responding to a motion is already at a disadvantage. The
moving party has whatever time they needed to draft their paperwork, but
once this is "served" the respondent must answer within about
15 days of the date of mailing (I will Blog the exact timing separately).
Fifth, it is hard to un-ring a bell once a Court has heard from one party.

FC 215 streamlines litigation where people are responsible.
It applies only to cases involving minor children. I imagine the public policy includes not feeling too protective of parents
who have gone 'walk about.' The greatest likelihood for abuse
is with child support modifications.

One thing is for sure:
You must keep updated address information on file with the Court for any case involving kids until they turn 18, or 19 if they are still
in high school and live with the first parent. If you move and fail to
notify the court, and a modification occurs in your absence, you may not
be relieved of your carelessness once you finally learn of the new orders!

Is It Possible to Get My Ex's TAX RETURNS Without Any MOTION to MODIFY Pending Between Us?

Posted By Thurman Arnold

Q. We were divorced three years ago and I haven't taken my ex-husband
back to Court. I think he is earning a lot more now. Is there anything
I can do to find out what his situation is short of actually filing a
modification motion?

When there is no motion or OSC pending for a modification, termination,
or set aside of earlier support orders you are limited in terms of your
discovery rights in California - assuming the proceedings were completed
in the sense that nothing is pending or presently calendared (if there
is no final judgment in a divorce, partnership dissolution, or paternity
action then you are entitled to continue to utilize discovery and what
I say here doesn't apply). You cannot, for instance, schedule a deposition
or send out interrogatories or even subpoena records, at least not properly.
I have seen lawyers send subpoenas when nothing was pending and if I had
done nothing they probably would have gotten the information requested
since the receiving party doesn't know the status of the case, but
when I objected they backed off and canceled the subpoenas at once because
it was abuse of process to do what they were attempting.

But in your case you only have the option provided for by FC section 3664.
This entitles you to send out on an approved FL-396 Request for Production
of An Income and Expense Declaration After Judgment a request no more
than once each year
(Family Code section 3663) for the other party to produce for you an updated Income and Expense Declaration.

Importantly, the responding party is required to attach to it their last
year's federal and state personal income tax returns.
(Family Code section 3665).

If they do not respond to you within 35 days, or if there information
is incomplete as to wages, you may serve
Judicial Council Form Request FL-397 upon their employer per
Family Code section 3664(b) and (c). Unfortunately, compliance by the employer is voluntary and so this provision
lacks teeth. Yet if you later do file a motion and can show a history
of noncompliance by the employer and/or the other party you are more likely
to recover attorney fees or sanctions as well as prove that the other
party is being evasive or possibly dishonest and this may help you not
only to carry your burden of proof and obtain a modification but it may
impact how strongly the court acts towards your ex. In the case of family
businesses where there is a lack of cooperation it helps the Court to
see that you are being stymied.

Section 3664 is also a very useful tool for parties who are trying to
modify or terminate support payments that they have been ordered to make.
If you are a payor former spouse or domestic partner and want to terminate
the other party's support rights, you would begin by sending them
the Request. Again, if they fail to cooperate and comply it makes them
look like they are hiding something.

Finally,
Family Code section 3667 entitles you to recover certain sanctions where the Income and Expense
declaration wasn't provided you, was incomplete, or lacked the required
tax return attachments. While you cannot recover attorney fees if you
don't actually have an attorney (and this section doesn't provide
for them anyway), you can recover deposition and related costs, like for
subpoenaed records (which can be significant charges), even where you
are a self-represented party.

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